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Gulley v. Noy

October 19, 2000

JASON M. GULLEY, PLAINTIFF-APPELLANT,
v.
YIGAL NOY, M.D., AND EMERGENCY MEDICAL CARE INCORPORATED, A FOREIGN CORPORATION, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Macon County No. 97L145 Honorable James A. Hendrian, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

In July 1997, plaintiff, Jason M. Gulley, filed a medical malpractice lawsuit against defendants, Yigal Noy, M.D. and Noy's employer, Emergency Medical Care Incorporated (EMCI). In March 2000, defendants filed a motion to dismiss Gulley's complaint, alleging that Gulley failed to file a health professional's report with his complaint in accordance with section 2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 1998)). In May 2000, the trial court granted defendants' motion and dismissed Gulley's complaint with prejudice.

Gulley appeals, arguing that (1) defendants forfeited their right to a dismissal under section 2-622 of the Code by failing to object to Gulley's noncompliance in a timely manner; and (2) the trial court abused its discretion by dismissing his complaint with prejudice. Because we agree with Gulley's first argument, we reverse and remand.

I. BACKGROUND

In July 1995, Gulley was treated in the emergency room of St. Mary's Hospital in Decatur. EMCI had a contract with St. Mary's Hospital to staff the emergency room with physicians. Noy worked for EMCI in St. Mary's Hospital emergency room and provided medical care to Gulley.

In July 1997, Gulley filed this lawsuit, alleging that defendants were negligent in providing him medical care at St. Mary's Hospital emergency room in July 1995. Gulley's attorney attached an affidavit to the complaint, pursuant to section 2-622(a)(2) of the Code, averring that he was unable to obtain a health professional's report as required by section 2-622(a)(1) of the Code, before the applicable statute of limitations would expire. (Pursuant to section 2-622(a)(2) of the Code, upon the filing of such an affidavit, the deadline for filing a health professional's report is extended 90 days, and a defendant is not required to file an answer to the complaint until 30 days after being served with the health professional's report. 735 ILCS 2-622(a)(2) (West 1998).)

Gulley still had not filed a health professional's report in September 1997, when defendants filed an answer to his complaint. At that time, defendants also served Gulley with a discovery request for production of documents and a set of interrogatories.

In January 1998, Noy moved for a 90-day stay of proceedings because Noy's malpractice insurance company had been placed under an order of rehabilitation and consequently could no longer provide Noy with an attorney. In February 1998, the trial court denied Noy's motion.

In January 2000, Gulley complied with defendants' discovery requests.

In March 2000, defendants filed a motion to dismiss Gulley's complaint for failure to file a health professional's report in accordance with section 2-622(a)(1) of the Code (735 ILCS 5/2-622(a)(1) (West 1998)). At an April 2000 hearing, the trial court heard arguments on defendants' motion, and in May 2000, the court dismissed Gulley's complaint with prejudice. This appeal followed.

II. ANALYSIS

A. Section 2-622 of the Code

Section 2-622 of the Code provides that in any medical malpractice action, the plaintiff's attorney must attach to the complaint an affidavit stating that he has consulted with a health professional in whose opinion there is a "reasonable and meritorious cause" for the filing of the action. Attached to the affidavit, the plaintiff must file a written report prepared by that health professional indicating the basis for his determination. 735 ILCS 2-622(a)(1) (West 1998). Section 2-622(a)(2) of the Code allows for a 90-day extension of time for the filing of the affidavit and report if the statute of limitations is near expiration. 735 ILCS 5/2-622(a)(2) (West 1998). In addition, section 2-622(g) of the Code provides that "failure to file a certificate required by this [s]section shall be grounds for dismissal under [s]section 2-619 [of the Code (735 ILCS 5/2-619 (West 1998))]." 735 ILCS 5/2-622(g) (West 1998).

Section 2-622 of the Code is designed to (1) reduce the number of frivolous medical malpractice lawsuits, and (2) eliminate such actions at an early stage, before litigation expenses mount. DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57, 65, 588 N.E.2d 1139, 1142 (1992). In McCastle v. Sheinkop, 121 Ill. 2d 188, 193, 520 N.E.2d 293, 296 (1987), the supreme court described section 2-622 of the Code as a "pleading requirement," not a "substantive defense" that would forever bar a plaintiff's complaint after an initial failure to comply with that section. In Mueller v. North ...


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